https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6795

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **JUDICIAL REVIEW MISC. APPLICATION NO. EO18 OF 2025** **REPUBLIC……………………………………….…………….…….APPLICANT** **VERSUS** **KENYA WILDLIFE SERVICE………………..…….………….1ST RESPONDENT** **CABINET SECRETARY, MINISTRY OF TOURISM & WILDLIFE………………………………………...……………2ND RESPONDENT** **HON. ATTORNEY GENERAL………………………….……3RD RESPONDENT** **AND** **BENSON KIRIMI LIBURU……………….…………….EX-PARTE APPLICANT** **RULING** 1. For determination is the chamber summons dated 10/6/2025 pursuant to **Sections 19 (a), 25 (1), (4) (5) of the Wildlife Conservation and Management Act and Order 53 Rule 1 of the Civil Procedure Rules**, seeking that; 1. **Spent** 2. **The ex parte applicant be granted leave to apply for judicial review orders of mandamus to issue against the 1st respondent compelling it to avail the recommendation for claim compensation lodged via claim form of Serial Number. 07/21/08/20.** 3. **The ex parte applicant be granted leave to apply for judicial review orders of mandamus to issue against the 2nd respondent compelling it to pay compensation to the ex parte applicant in the sum of Kenya Shillings Four Hundred and Sixty Thousand (Kshs. 460,000/=) as contemplated under Section 25 (4) (5) of the Wildlife Conservation and Management Act.** 4. **Costs of this application be borne by the 1st Respondent.** 2. The application is premised on the grounds on the face of it and supported by a Verifying Affidavit sworn by Benson Kirimi Liburu, the ex-parte Applicant on even date. He averred that on 21/8/2020, rogue elephants raided his farm at Nchiru area and destroyed, wantonly ate, trampled, uprooted and damaged his crops, causing him economic loss and financial constraint. He is advised by his Advocate that this court can compel the 1st Respondent to submit the claim form submitted on 23/8/2020. His advocate has followed up with the 1st Respondent with little success, and he feels that the 1st Respondent has deliberately failed to make a recommendation, if any, to the 2nd Respondent, thereby denying and/or frustrating his claim for compensation. 3. The 1st Respondent opposed the application vide a replying affidavit sworn by Wanjiru Christine, its Legal Officer, on 30/6/2025. She averred that the County Wildlife and Compensation Committee is mandated under Section 19 of the Wildlife Conservation and Management Act to give recommendations to the 2nd Respondent upon verification and review of a claim. The orders sought can only lie against the County Wildlife and Compensation Committee and the 2nd Respondent. 4. The 2nd and 3rd Respondents filed grounds of opposition dated 16/10/2025 that; 1. **The Application dated 10th June, 2025 has not met the threshold for the grant of the orders sought.** 2. **The application is misdirected since the 2nd and 3rd Respondents have neither failed nor refused to deliberate, verify and/or recommend the compensation of the Applicant since the strict procedures stipulated in the Wildlife Conservation and Management Act, 2013 and the Wildlife Conservation and Management (Compensation) Regulations, 2017 are ongoing.** 3. **It is trite law that for a court to grant an order for Mandamus, the Applicant must prove that there is an express refusal, or an implied refusal through unreasonable delay by the public body. The 2nd & 3rd Respondents have not refused and/or delayed in complying with the law in the instant matter.** 4. **The application fails to demonstrate any specific breach of statutory duty or wrongdoing on the part of the 2nd and 3rd Respondents and there is no evidence establishing neglect, refusal, or failure to perform any duty as required by the law.** * 1. **The 2nd & 3rd Respondents have not abdicated their statutory roles as alleged by the Applicant, and no evidence has been adduced to support those wild allegations.** 2. **This application is misadvised as it seeks to circumvent the prescribed legal and administrative mechanisms expressly established by the law to handle allegations of crop damage by wildlife and the resultant compensation if the claim is proved as required by the law.** 3. **The Application is misconceived and full of untrue allegations which are not supported by any evidence and therefore should be dismissed forthwith.** 1. The ex-parte applicant swore a Supplementary Affidavit on 29/8/2025 in support of the application. **Submissions** 1. The ex-parte applicant, through the Firm of Mutuma & Koskei Advocates, filed submissions dated 29/8/2025 and 14/10/2025. Counsel faulted the 1st Respondent for failing to forward the claims or avail recommendations to the Committee for compensation, which has precipitated the non-payment and financial loss by the ex-parte applicant. Counsel submitted that the prolonged inaction amounts to unreasonable delay and constructive refusal satisfying the threshold for mandamus as articulated in **Republic v County Government of Siaya & 2 Others; Olute (Exparte Applicant) [2024] KEELRC 1868 (KLR)**. Counsel contended that the loss occasioned by the ex-parte applicant and the period lapsed since the date of the incident, following up on compensation, justifies the invocation of the Judicial Review jurisdiction, and cited **Nandwa v Attorney General & another (Judicial Review Application E160 of 2024) [2025] KEHC 3617 (KLR) (Judicial Review) (25 March 2025) (Ruling)**. 2. The 1st Respondent did not file any submissions. 3. The 2nd and 3rd Respondents, through the Attorney General filed submissions dated 11/11/2025. Counsel contended that there was no evidence showing that the applicant’s claim has reached the stage where the Respondents are obligated to consider or approve payment. Counsel submitted that the **Wildlife Conservation and Management Act** or attendant regulations do not confer upon the 2nd and 3rd Respondents the mandate to directly process or pay compensation claims of the nature sought by the ex-parte applicant. Counsel invited the court to find that the application does not satisfy the requisite threshold for grant of Judicial Review remedy of mandamus. **Analysis and Determination** 1. After critical consideration of the application, the responses thereto, and the submissions on record, together with the cited authorities, the issue for determination is whether the threshold for granting leave to apply for Judicial Review order of mandamus has been met. 2. **Order 53 of the Civil Procedure Rules** provides that leave must mandatorily be sought before judicial review proceedings can be commenced. 3. The principles which guide our courts when exercising jurisdiction to grant leave under order **53 of the Civil Procedure Rules** were settled in **Republic v County Council of Kwale & Another; Kondo & 57 others (Ex parte) [1998] KEHC 2 (KLR)** where Waki J *(as he then was)* enunciated that: ***“*The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration…Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application** **for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially.”** 1. In **Meixner & another v Attorney General (Civil Appeal 131 of 2005) [2005] KECA 292 (KLR) (16 September 2005) (Judgment)**, the Court of Appeal held that; **“The leave of the court was a prerequisite to making a substantive application for judicial review. The purpose of the leave is to filter out frivolous applications. The granting of leave or otherwise involves an exercise of judicial discretion. The Court of Appeal can only interfere with the discretion of the judge denying the appellants leave to apply for judicial review on the firmly established principles stated in Mbogo v Shah [1968] EA 93.”** 2. Evidently, the gist of the ex-parte applicant’s claim is predicated under **Section 25 of the Wildlife Conservation and Management Act** and **Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations 2017**. 3. According to the 1st respondent, the orders sought in the application can only lie against the County Wildlife and Conservation Committee as decreed under **Section 25 of the Wildlife Conservation and Management Act.** 4. I find that the omission to sue the County Wildlife and Conservation Committee does not inherently render the application incompetent because the 1st respondent is the statutory body mandated by **Section 7 of the Act** to set up the County Wildlife and Compensation Committees in each county and oversee the overall administration. 5. Most importantly, I must emphatically underscore that the County Wildlife and Conservation Committee is the proper body explicitly mandated under **Section 25 of the Wildlife Conservation and Management Act** and **Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations 2017** to verify the claim and submit it to the Cabinet Secretary together with its recommendations. 6. Without going into the merits of the substantive motion so as not to pre-empt the outcome thereof at this interlocutory stage, I find that the ex-parte applicant has demonstrated to the satisfaction of the court that he has an arguable case warranting grant of leave. 7. The upshot from the foregoing is that leave is hereby granted to the ex-parte applicant to apply for an order of Mandamus. 8. The substantive Notice of Motion shall be filed and served within 21 days from the date hereof. 9. Costs shall be in the cause. **DATED AND DELIVERED AT MERU THIS 18TH DAY OF MAY, 2026.** **S.M. GITHINJI –JUDGE** **18/5/2026** **In the presence of:-** Ms. Mutuma for the Exparte Applicant Ms Wanjiru for the 1st Respondent Mr. Obura for the 2nd Respondent